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27 December 2010

Copyrighting Couture

There has, for a number of years now, been much debate about whether clothes can or should be copyrightable. While some quarters have claimed that the fashion industry thrives on the freedom to copy (which is what arguably brings the runway to the high street), others have stated that the fashion industry should be able to avail the protection of not just IP law in general, but copyright law in particular.

So far, as a general rule, neither couture nor accessories have been protectable under copyright law, and designers have been forced to design their creations in such a way that this lack of protection would not significantly impact them. For example, in the case of hand bags, a number of companies have taken to stamping their logos all over their products. This is because although it is not possible to prevent the unauthorised copying of the design of a bag itself through copyright law (or, possibly, even the law pertaining to commercialised designs), it is possible to prevent the unauthorised copying of the logo through trade mark law. And if a feature of a high-end designer bag is the designer's logo on its body, a counterfeit of the bag would necessarily have to copy the logo – and violate the trade mark rights of the designer in the process. As such, it would be possible to use trade mark law to protect the design.

This may be a rather circuitous route through which to protect a design. However, it is no less circuitous than some of the other mechanisms which have been employed to protect clothes. And the employment of these mechanisms has not always been restricted to the attempted protection of high-end fashion either.

For example, in 2008, an Edinburgh-based kilt-maker, Howie Nicholsby, “exasperated by the influx of cheap, foreign imports calling themselves Scottish kilts, got in touch with the Scottish Member of European Parliament Alyn Smith to see if they could persuade the European Commission to give the Scottish kilt protected designation of origin (PDO) status.” Never mind that the protected designation of origin status is usually used to protect food under EEC regulation 2081/92.

Around the same time, in India, the case of Rajesh Masrani v. Tahiliani Designs Pvt. Ltd. [2009 (39) PTC 21] made the news (among lawyers, anyway). Heard by the Delhi High Court, this case dealt with copyright, clothes and the connection between the Copyright Act and the Designs Act. It left one with the impression that Indian law would be willing to grant protection to couture, given the right circumstances. Subsequently, the burden of the case was recapitulated in the Microfibres v. Giridhar / Mattel v. Jayant Aggarwalla / Dart Industries v. Technoplast appeal [2009(40)PTC519(Del)], and it was reiterated that a suit for infringement is maintainable in certain circumstances (albeit, unfortunately for the appellants, not in the circumstances of the Microfibres case.)

In the US, however, it appears that at some point in the foreseeable future, it would cease to be necessary to employ creative methods to have copyright protection accorded to fashion. The Senate Judiciary Committee has reportedly recently approved legislation which would protect clothes (or couture, at any rate). According to Wikipedia:

“The Innovative Design Protection and Piracy Prevention Act was introduced on August 5, 2010 by New York Senator Charles E. Schumer and ten cosponsors. If passed, it would amend Chapter 13 of the Copyright Act to set the term of intellectual property protection at 3 years for a fashion design and 10 years for a design of a vessel hull, and create higher penalties for false representation of another person's designs. A copy of a design will be penalized if it is found to be "substantially identical" to the original work with little to no changes to set that design apart. Penalties for false representation are increased in this bill from $500 to $5,000 and from $1,000 to $10,000. "Apparel" items that would be protected by this Act include women's, men's, and children's clothing as well as luggage, handbags, wallets and eyeglass frames. A "fashion design" under the IDPPPA would be defined as an entire article of apparel including its embellishment and also includes elements of the original apparel that are the creative work of the original designer and are unique. Similar proposed legislation has been introduced before like the Design Piracy Prohibition Act also known as the DDPA of 2006.”

Although this would probably deter persons from creating knock-offs of couture in the US, it is unclear whether this would actually be good for the fashion industry. It is also unclear whether this would encourage other jurisdictions to pass comparable laws.

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